A health care provider’s statement of apology that expresses fault or admission of liability to a patient or the patient’s family cannot be admitted as evidence in a civil lawsuit against the provider, the Ohio Supreme Court ruled today.

The Supreme Court ruled that “a statement expressing apology” means a statement expressing a feeling of regret for an unanticipated outcome of the patient’s medical care, and may include an acknowledgment that the patient’s care was substandard.

The ruling resolved a split among Ohio appeals courts that differed on whether the term “apology” excluded a provider’s apology that included an admission of fault. The Court heard oral arguments on the matter at an April off-site court hearing in Morgan County.

The majority decision, written by Justice Sharon L. Kennedy, affirmed rulings by lower courts not to admit the statements of Dr. Rodney E. Vivian in a medical malpractice lawsuit brought against him by the family of a woman who committed suicide. The woman was under Vivian’s care at a Clermont County hospital.

The Court unanimously agreed that Ohio’s “apology statute,” R.C. 2317.43, shields apologies that include admissions of fault. However, two justices concluded that Vivian’s statements were not an apology and the trial court should have allowed his comments to be presented in the case.

Woman Commits Suicide While in Medical Care
In February 2010, Michelle Stewart attempted suicide in the early evening. She was transported to the emergency department of Mt. Orab Medicenter, and around midnight she was transferred to the psychiatric unit at Mercy Hospital Clermont, where Vivian was the admitting physician.

A registered nurse assessed Stewart and conferred with Vivian, who ordered that a staff member of the psychiatric unit visually observe Stewart every 15 minutes. The order remained unchanged throughout her stay on the unit.

About 6 p.m. on the next day, Stewart’s husband, Dennis, arrived at the unit to visit his wife. When entering her room, he found she had hung herself and was unresponsive. She was transported to the intensive-care unit (ICU) and placed on life support.

Two days later, Vivian went to Stewart’s ICU room to speak with the family. He spoke to them briefly before one of them asked Vivian to leave, which he did. The next day a neurologist told Dennis that his wife would not recover, and the following day Dennis directed hospital staff to take his wife off life support. Stewart died a few hours later.

Dennis filed a lawsuit against Vivian and Mercy Hospital for medical malpractice, wrongful death, and other claims. Mercy reached a settlement with him, but the case against Vivian proceeded in Clermont County Common Pleas Court.

Doctor Seeks to Exclude Bedside Comments
The Ohio apology statute provides: “In any civil action brought by an alleged victim of an unanticipated outcome of medical care ..., any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider ... to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”

Vivian asked the trial court to exclude the statements he made to the Stewart family while in the ICU, arguing the apology statute made his statements inadmissible. He maintained his statements had been “intended to express commiseration, condolence, or sympathy,” which the law allows to be excluded. Dennis argued the statements ought to be admitted because they were not “pure expressions” of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, which the law lists as the kind of statements that can be excluded.

Vivian’s account of the ICU discussion differs from Dennis’ and Stacey Sackenheim’s, Michelle’s sister. Vivian testified in court that he remembered telling the family, “I’m sorry this happened,” and he remembered someone screaming at him that this was his fault and he left. However, during a deposition before the trial, Vivian recalled that he “made a statement,” but did not remember what he said.

Sackenheim testified that Vivian walked “toward the end of Michelle’s bed, and kind of stood for a moment and then just said, ‘So what do you think happened here?’”

Sackenheim said Dennis responded, “Obviously she tried to kill herself,” and that Vivian responded to Dennis, “Yeah, she said she was going to do that. She told me she would keep trying.”

Dennis testified that he saw Vivian walk in and that he ignored him. He said he could not remember Vivian asking him about how it happened. He recalled Vivian stating “that he didn’t know how it happened, it was a terrible situation, but she had just told him that she still wanted to be dead, that she wanted to kill herself.”

The trial court concluded that the differences between the accounts given by the Stewart family made it impossible to reconcile their versions, and the court believed that Vivian could not remember what he said. The court concluded that Vivian’ statements were an “attempt at commiseration,” and inadmissible.

The case proceeded to trial, and a jury concluded Vivian was not negligent.

Appeals Court States Court Split on Law
Dennis appealed to the Twelfth District Court of Appeals, which determined that R.C. 2317.43 is ambiguous because the law does not define “apology” and dictionary definitions of the term “may or may not include an admission of fault.”

The Twelfth District analyzed the history of the law and concluded the Ohio General Assembly intended to protect all statements of apology, including those admitting fault. It ruled Vivian’s statements were correctly excluded and affirmed the trial court decision.

The Twelfth District noted its decision conflicted with a 2011 Ninth District Court of Appeals decision (Davis v. Wooster Orthopaedics & Sports Medicine, Inc.) that ruled the law only protects pure expressions of apologies but not admissions of fault. The Ninth District reasoned that while definitions of apology include admitting fault, not all do. Because the law paired “apology” with “sympathy, commiseration, condolence, compassion, or a general sense of benevolence,” which do not have definitions that include fault, the Ninth District reasoned the law was intended only to protect apologies devoid of any acknowledgment of fault. The appellate court noted the legislature could have added the words “all admissions of liability” or something similar if it intended to exclude those types of statements.

The Supreme Court agreed to consider Dennis Stewart’s appeal of the Twelfth District decision and the conflict between appellate courts.

Law Not Ambiguous, Court Rules
Justice Kennedy wrote the Supreme Court disagrees with the appellate courts and finds the apology statute is not ambiguous. Because the General Assembly did not define “apology,” the Court turned to the dictionary definition of the term. The Court noted that the relevant definition of apology in Webster’s Third New International Dictionary is “an acknowledgment intended as an atonement for some improper or injurious remark or act: an admission to another of a wrong or discourtesy done him accompanied by an expression of regret....”

Applying the definition, the opinion stated that expressing apology is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and “may include an acknowledgement that the patient’s medical care fell below the standard of care.”

The Court wrote the Ninth District incorrectly found the law only protected “pure expressions of apology,” because the legislature did not qualify “apology” with “pure” or place any limitations on the meaning of the term “apology” by specifically defining the term. Therefore, the plain meaning of apology applied.

The Court affirmed the verdict in favor of Vivian and the Twelfth District’s judgment.

Justices Terrence O’Donnell, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined Justice Kennedy’s decision.

Concurring Justices Question Vivian’s Statements
Chief Justice Maureen O’Connor concurred in part and dissented in part with the majority opinion. In an opinion joined by Justice William M. O’Neill, the chief justice agreed that the law covers both statements of apology and admissions. However, she wrote that Vivian’s statements did not meet the law’s requirements to be excluded, and she would reverse the Twelfth District’s judgment.

Chief Justice O’Connor wrote the trial court’s decision was unreasonable, and that a key term in the law is the requirement that the statements are expressing apology. Pointing to the same dictionary cited by the majority, she noted the definition of “express” requires that a person “state,” “utter,” or “convey” an impression, and the law does not include “statements merely intending or attempting to express commiseration or a feeling of regret.”

“Dr. Vivian’s statements were not an apology nor did they express regret or a type of shared sadness associated with sympathy or commiseration,” she wrote. “Dr. Vivian’s recitation of Michelle’s prior statements certainly does not fall within the statute. ‘What do you think happened here?’ is a question, not an expression of Dr. Vivian’s regret or sympathy. Dr. Vivian’s statement that he ‘didn’t know how it happened’ similarly is not an apology.”

The chief justice noted that the law should not be applied so rigidly as to require the words “I apologize” or “I sympathize,” in order for the statement to be excluded, but that the Court needs to draw a line and not include “vague statements that, at best, might constitute expressions of shock and surprise” that do not include an apology or expression of commiseration or regret.

2016-1013. Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526.

View oral argument video of this case.

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